Walker v. Probandt

1.Default Judgments: Pleadings: Appeal and
Error. Whether default judgment should be entered
because of a party's failure to timely respond to a
petition rests within the discretion of the trial court, and
an abuse of discretion must affirmatively appear to justify
reversal on such a ground.

2.
Default Judgments. A trial court should
defer entering a default judgment against one of multiple
defendants where doing so could result in inconsistent and
illogical judgments following determination on the merits as
to the defendants not in default.

3.
Default Judgments: Pleadings: Damages. In
the case of an original action filed in the district court,
the failure of a defendant to file a responsive pleading
entitles the plaintiff to a default judgment, without
evidence in support of the allegations of the petition,
except as to allegations of value or damages.

4.
Negotiable Instruments: Principal and
Surety. If an instrument is issued for value given
for the benefit of a party to the instrument (accommodated
party) and another party to the instrument (accommodation
party) signs the instrument for the purpose of incurring
liability on the instrument without being a direct
beneficiary of the value given for the instrument, the
instrument is signed by the accommodation party for
accommodation.

5.
Negotiable Instruments: Principal and Surety: Words
and Phrases. An accommodation party is one who signs
the instrument for the purpose of lending his credit to some
other person or party.

6.
Promissory Notes: Guaranty. The assignment
of a promissory note and its guaranties to a guarantor does
not enhance the guarantor's right of [25 Neb.App. 31]
recovery against a coguarantor; rather, recovery against a
coguarantor remains limited to the coguarantor's
proportionate share.

7.
Negotiable Instruments: Intent. In
determining the identity of the party accommodated, the
intention of the parties is determinative.

8.
Actions: Contribution: Time: Liability.
Co-obligors to a debt are each liable for a proportionate
share of the debt as a whole, and an action for contribution
does not accrue until a co-obligor has paid more than his or
her proportionate share of the debt as a whole.

9.
Negotiable Instruments: Security Interests:
Contribution: Liability. If the obligation of a
party is secured by an interest in collateral not provided by
an accommodation party and a person entitled to enforce the
instrument impairs the value of the interest in collateral,
the obligation of any party who is jointly and severally
liable with respect to the secured obligation is discharged
to the extent the impairment causes the party asserting
discharge to pay more than that party would have been obliged
to pay, taking into account rights of contribution, if
impairment had not occurred.

10.
Security Interests. Impairing value of an
interest in collateral includes failure to obtain or maintain
perfection or recordation of the interest in collateral.

11.
Principal and Surety: Words and Phrases.
Rights of the surety to discharge are commonly referred to as
"suretyship defenses."

12.
Contracts: Guaranty: Waiver. The defense
that a guarantor is discharged by a creditor's impairment
of collateral can be waived by an express provision in the
guaranty agreement.

13.
Reformation: Words and Phrases. A mutual
mistake is a belief shared by the parties, which is not in
accord with the facts.

14. __:
__. A mutual mistake is a mistake common to both parties in
reference to the instrument to be reformed, each party
laboring under the same misconception about its instrument.

15.
Reformation: Intent. A mutual mistake exists
where there has been a meeting of the minds of the parties
and an agreement actually entered into, but the agreement in
its written form does not express what was really intended by
the parties.

16.
Reformation: Presumptions: Intent: Evidence.
To overcome the presumption that an agreement correctly
expresses the parties' intent and therefore should not be
reformed, the party seeking reformation must offer clear,
convincing, and satisfactory evidence.

17.
Evidence: Words and Phrases. Clear and
convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved.

18.
Uniform Commercial Code: Negotiable Instruments:
Words and Phrases. A holder in due course means the
holder takes an instrument [25 Neb.App. 32] (1) for value,
(2) in good faith, (3) without notice that the instrument is
overdue or has been dishonored or that there is an uncured
default with respect to payment of another instrument issued
as part of the same series, (4) without notice that the
instrument contains an unauthorized signature or has been
altered, (5) without notice of any claim to the instrument
described in Neb. U.C.C. § 3-306 (Reissue 2001), and (6)
without notice that any party has a defense or claim in
recoupment described in Neb. U.C.C. § 3-305(a) (Reissue
2001).

19.
Contracts: Negotiable Instruments. Unless
one has the rights of a holder in due course, he is subject
to all the defenses of any party which would be available in
an action on a simple contract.

20.
Breach of Contract: Damages. In a breach of
contract case, the ultimate objective of a damages award is
to put the injured party in the same position he would have
occupied if the contract had been performed, that is, to make
the injured party whole.

21.
Damages. As a general rule, a party may not
have double recovery for a single injury, or be made
"more than whole" by compensation which exceeds the
actual damages sustained.

22.
Actions: Accord and Satisfaction. Where
several claims are asserted against several parties for
redress of the same injury, only one satisfaction can be had.

23.
Accord and Satisfaction: Damages. Where the
plaintiff has received satisfaction from a settlement with
one defendant for injury and damages alleged in the action,
any damages for which a remaining defendant would be
potentially liable must be reduced pro tanto.

24.
Actions: Parties. Every action must be
prosecuted in the name of the real party in interest.

25.
Actions: Parties: Standing. To determine
whether a party is a real party in interest, the focus of the
inquiry is whether that party has standing to sue due to some
real interest in the cause of action, or a legal or equitable
right, title, or interest in the subject matter of the
controversy.

26.
Assignments: Words and Phrases. As a general
rule, an assignment is a transfer vesting in the assignee all
of the assignor's rights in property which is the subject
of the assignment.

27.
Assignments. The assignee of a thing in
action may maintain an action thereon in the assignee's
own name and behalf, without the name of the assignor.

28.
Assignments: Consideration. An assignee may
recover the full value of an assigned claim regardless of the
consideration paid for the assignment.

[25
Neb.App. 33] 30.Contracts:
Consideration. Generally, there is sufficient
consideration for a promise if there is any benefit to the
promisor or any detriment to the promisee. What that benefit
and detriment must be or how valuable it must be varies from
case to case. It is clear, however, that even "a
peppercorn" may be sufficient.

31. __:
__.A benefit need not necessarily accrue to the promisor if a
detriment to the promisee is present, and there is a
consideration if the promisee does anything legal which he is
not bound to do or refrains from doing anything which he has
a right to do, whether or not there is any actual loss or
detriment to him or actual benefit to the promisor.

32. __:
__. For the purpose of determining consideration for a
promise, the benefit need not be to the party contracting,
but may be to anyone else at the contracting party's
procurement or request.

Appeal
from the District Court for Dawson County: James E. Doyle IV,
Judge. Affirmed in part, and in part reversed and remanded
with directions.

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